Senate Democrats Are Shifting Focus From Roberts to Other Seat

By DAVID D. KIRKPATRICK

Published: September 9, 2005

Senate Democrats say the death of Chief Justice William H. Rehnquist has eased the pressure on them to oppose the Supreme Court nomination of Judge John G. Roberts Jr. but has set the stage for a more contentious battle over the other vacancy on the court.

''When you are thinking about the balance of the court, you say, 'O.K., Judge Roberts is replacing Justice Rehnquist,''' said Senator Joseph I. Lieberman, Democrat of Connecticut. '''Consider him on his merits, but it doesn't alter the balance of the court.'''

Democratic senators and strategists say they are weighing whether to save their ammunition for the next nominee, who would succeed retiring Justice Sandra Day O'Connor, often the swing vote on social issues.

Liberal groups had vowed to hold accountable any senator who voted to confirm Judge Roberts if he ended up moving the court to the right on abortion rights, affirmative action or other issues, but the death of a conservative justice revives the possibility that the next nominee may preserve the current equilibrium.

Since Chief Justice Rehnquist's death, some prominent Democratic critics of Judge Roberts have acknowledged more openly that he is likely to win confirmation.

''Has anything come up before the hearings that is a showstopper for Roberts? The answer is no,'' said Senator Richard J. Durbin of Illinois, the Democratic whip, who, as a member of the Judiciary Committee, voted against confirming Mr. Roberts to a federal appeals court seat two years ago.

With hearings on Judge Roberts's confirmation set to start Monday, Democratic leaders are already laying the groundwork for the next battle. On Thursday, Senator Harry Reid of Nevada, the Democratic leader; Senator Charles E. Schumer of New York, a vocal member of the Judiciary Committee; and others sent the president a letter urging him to consult them more extensively than he did before naming Judge Roberts. ''It is especially important to identify a consensus candidate to succeed Justice O'Connor, who has been a voice of reason and moderation,'' the letter said.

Although Mr. Reid has not taken a position on Judge Roberts, he recently made clear that he would object to several of the names reported to be on the president's short list for the other court seat: the federal appeals court judges J. Michael Luttig, Emilio M. Garza and Edith H. Jones.

''Senator Reid doesn't feel that someone such as either Luttig, Garza or Jones, among others, would be a suitable replacement for Justice O'Connor,'' his spokesman, Jim Manley, said Thursday.

Mr. Schumer, for his part, said some on the short list were ''totally unacceptable'' and others were ''more acceptable,'' including Attorney General Alberto R. Gonzales and Mr. Bush's former deputy attorney general, Larry D. Thompson. Social conservatives are urging the White House not to nominate Mr. Gonzales because they fear he is not committed to opposing abortion rights.

Senator Edward M. Kennedy, Democrat of Massachusetts and a veteran member of the Judiciary Committee, sent his own letter to the president suggesting several Republicans or Republican appointees ''of impressive legal talent,'' including Judges Sonia Sotomayor of the United States Court of Appeals for the Second Circuit, Ann Claire Williams of the Seventh Circuit and Edward Charles Prado of the Fifth Circuit.

Mr. Kennedy also mentioned David Frohnmayer, former attorney general of Oregon and current president of the University of Oregon.

Some are trying to turn Judge Roberts's qualifications into a test of the next nominee. ''It is a high standard that has been set by Roberts so far -- emphasis on so far -- in terms of legal stature,'' Senator Durbin said.

Like other Democrats on the committee, Mr. Durbin vowed to question Judge Roberts vigorously during the hearings and said that his answers could still change the calculus. The debate is now even more important, Democrats say, not only because Judge Roberts would become chief justice but because the disclosure of his record, which Democrats have pushed for, would set a precedent.

But both sides of the debate say it will be a tall order to find another nominee with Judge Roberts's combination of conservative credentials, a sterling legal r?m?nd a relatively limited paper trail. Jordan Lorence, a lawyer for the conservative Alliance Defense Fund, said that aside from Judge Roberts, most of the names pleasing to the right seemed certain to arouse the wrath of the left.

''How do you replace Justice O'Connor without starting World War III?'' he asked.

Democrats have argued that a decline in public support for Mr. Bush might encourage him to avoid a confrontation over a nominee perceived by the left to be ultraconservative. A poll released Thursday by the Pew Research Center showed that Mr. Bush's support among conservative Republicans had slipped to 84 percent after Hurricane Katrina, from 91 percent in July.

Some conservatives suggest that the dip in the polls should create the opposite effect, forcing the president to choose a nominee who would be embraced by his conservative base. ''Why alienate your last major group of supporters?'' Mr. Lorence asked.

Democrats know that fighting two nominees around the same time has often proved difficult. In 1986, Democrats bitterly resisted the confirmation of Justice Rehnquist as chief, for example, only to let the simultaneous nomination to the court of another staunch conservative, Judge Antonin Scalia, breeze through after just one day of hearings.

''The American people have a limited attention span, just like the editors of newspapers,'' Mr. Durbin said.

The possibility that the next nominee could alter the balance of the court is the reason a lot of Democrats ''have asked the president to tip his hand -- which he wouldn't do,'' Mr. Durbin said. ''If we felt there was a true moderate coming, we would be a lot more relaxed.''

Others in the party wonder how much attention the debate over Judge Roberts will attract in the aftermath of Hurricane Katrina.

When first asked about the nominee yesterday in an interview, Senator Lieberman joked, "John who?"

Photo: Judge John G. Roberts Jr. leaving the funeral of Chief Justice William H. Rehnquist, whose position he has been nominated to fill, on Wednesday. (Photo by Stephen Crowley/The New York Times)